- Information
- AI Chat
Occupier'S Liability
Bachelor of Laws (LLB)
Makerere University
Recommended for you
Preview text
OCCUPIER’S LIABILITY
It is dealt with purely with English Common Law principles.
Uganda has no Occupier?s Liability Act. However, in England there is the Occupier?s Liability Act of 1957 and the Occupier?s Liability Act of 1984.
AN OCCUPIER
The Occupier?s Liability Act of 1957 doesn?t define an Occupier but provides that the rules of the common law shall apply. This is under section 1(2).
Under the Common Law, an occupier was the person that exercised control over the premises. The test therefore is occupational control of the premises. It is also important to note that there can be more than one occupier. For one to be an occupier there must be control associated with and arising from presence in and use of or activity in the premises.
CASE
WHEAT V E. LACON& CO. LTD [1966] AC 552
FACTS
The defendants were a brewery house. The managers of the brewery house, Mr and Mrs Richardson, lived on the premises and occupied a private portion there. Wheat, a paying guest, fell down the stairs of that private part of the premises and died, because there was no handrail on part of the stairs and someone had removed the light bulb on the stairway. Mr Wheat?s estate sued the brewery company under the Occupiers? Liability Act 1957.
ISSUE
Whether the brewery fell within the scope of the Act as an occupier?
HELD
Lord Denning defined an occupier as a person who has sufficient control over the premises to the extent that he ought to realise that lack of care on his part can cause damage to his lawful visitors. The duty may be shared between several occupiers, who will be jointly and severally liable to the visitors if they both fail to exercise the due care, causing injury. The court found that the defendants were occupiers.
To be an occupier, you don?t have to be on the premises. This is the only way a company can occupy premises. In some instances, physical occupation itself will be unnecessary.
CASE
HARRIS V BIRKENHEAD CORPORATION [1976] 1 ALL ER 341
FACTS
The plaintiff was a child who brought an action against the defendants for damages for the personal injury she had suffered as a four-and-a-half-year-old when she fell out of a second floor window and suffered serious injuries. The property was in a clearance area and the corporation, by way of process, usually bricked up the ground floor access areas to prevent it from vandals after they had served notice on the tenant to vacate. One of the tenants left without informing the local authority and so the corporation hadn?t secured the building and vandals smashed the window that Harris had fallen out of as a child. In the first instance, the trial judge ruled in favour of the plaintiff hence the appeal.
ISSUE
Whether the defendant was an occupier?
HELD
The defendant was an occupier as they had asserted their right to control the property. Moving forward, after a service of notice of entry was served; the relevant authority became the legal occupier. On this basis, the authority was liable for the damage caused to Harris.
VISITORS
The Occupiers? Liability Act of 1957 deals with visitors and a visitor means a person that has express or implied permission to be on the land. This covers people that have been asked to enter on the land or people who have permission to be on the land. (At Common Law, they were known as Invitees and Licensees respectively).
It is important to note that having knowledge of someone?s presence on your premises isn?t permission.
Persons using rights of way do so not with the permission of the owner of the solum but in the exercise of a right. There is no room for the view that such persons might have been licensees or invitees of the land owner under the old law or that they are his visitors under the English and Northern Irish Acts of 1957.
Occupiers? liability creates a duty of care upon the occupier to all visitors except so far as he has extended, excluded or modified the duty. This means that the occupier must take such care as is reasonable to see that the visitor will reasonably be safe in using the premises he/she is at. See: Section 2(2) of the Occupiers? Liability Act.
The standard of care is therefore that of a reasonable person.
SPECIAL CATEGORIES OF PERSONS
CHILDREN
The law is aware that certain person will not exercise care: Section 2(3) of the Act, the occupier must be prepared for the children to be less careful than adults. An object which poses no threat to an adult may be dangerous to a child as for example in Moloney v Lambeth London Borough Council (1966) 64 LGR 440; where a boy aged 4 fell through a gap in the railings protecting a stairwell. An adult could not have fallen through the gap. The occupier was held liable.
Therefore, dangers which might be obvious to an adult and so easily avoided, can present serious risks to children who may simply be unable to appreciate the nature or extent of the danger. An occupier must also take account of the fact that children are naturally curious and inquisitive, and maybe attracted to objects or situations which are outside the limits of the permission granted by the occupier. There is a duty to therefore not lead kids into temptation.
CASE
GLASGOW CORPORATION V MUIR [1943] AC 448
FACTS
The defendants, Glasgow Corp. were the owners of an old mansion in King?s Park, Glasgow. There was tea rooms and sweets shops located in the building. One wet afternoon, the manageress of the mansion allowed the group of picnickers to have tea in their mansion. They brought their own tea urn. While manoeuvring the tea urn through the narrow passage
to get into the building, one of the carrying persons inexplicably dropped his part of the urn. As a result, the boiling tea spilled over the place and scalded the children who were standing in the narrow hallway to buy the sweets from the shop. The action was brought on behalf of the injured children for negligence of the defendants? employee, the manageress.
ISSUE
Whether the manageress was negligent and whether the damage was foreseeable?
HELD
The House of Lords held that she was not negligent. As per Lord MacMillan... legal liability is limited to those consequences of our acts which a reasonable man of ordinary intelligence and experience so acting would have in contemplation. ... Suppose that the carrier let go of his handle through carelessness, was Mrs Alexander (the manageress) bound to foresee this as reasonably probable and to take precautions against the possible consequences? I do not think so. Since the result was not a natural and probable consequence of the manageress? action, she was not liable for negligence.
GLASGOW CORPORATION V TAYLOR [1922] 1 AC 44
FACTS
The claimant was Mr Taylor, a father of 7-year old boy who died after eating berries from a poisonous shrub growing in the Botanic Garden of Glasgow. Although the plant was in the fenced part of the garden, the young children were able to easily open the gate of the fence. The defendants were aware of the dangerous nature of the berries, however, did not take any adequate precautions to warn the children or the parents about the deadly plant. There were no relevant notices on the fence either. The garden was under the management of the Council; therefore, the father of the boy brought an action against the Council for negligence.
ISSUE
Whether the council had breached its duty of care to the visitors of the public garden and whether there was a higher standard for the duty of care since the child was involved?
HELD
This case is therefore a qualification to section 2(3)(a) of the OLA which states that an occupier must be prepared for children to be less careful than adults.
SKILLED VISITORS
An occupier is entitled to expect that a person in the exercise of his calling will appreciate and guard against any special risks incidental to it so far as the occupier allows him to do so as per section 2(3)(b). Just as children can be expected to be less able than the average adult to look after themselves, the skilled visitor should be better able to take care for his own safety, but only with respect to the risk associated with his specialism.
CASE
ROLES V NATHAN [1963] 1 WLR 1117
FACTS
Two chimney sweeps were sealing up a sweep hole. Carbon monoxide came through. They had been warned repeatedly, and told not to stay in too long, and not to work while a fire was alight. Once already, they had been dragged out for not doing as they were told. They died while working when the fire was burning. The widows sued the occupier.
ISSUE
Whether the defendants were liable?
HELD
The warnings were enough for the occupiers to fall within the ambit of section 2(4)(a) of the OLA defence. Moreover, the occupier was under no duty of care, because under section 2(3)(b) the risk was incident to the workmen?s calling, a danger they could have been expected to guard against. Pearson LJ dissented; on the basis of what he saw as the evidence of the workers? conduct to be. He thought because the chimney sweeps had not lit the fire, and did not know of it, this was a danger beyond their calling, under section 2(3)(b) and that for section 4(a) the warnings were not enough, because the defendants? care taker had lit the fire. Lord Denning giving the leading judgment held: in the case of a chimney sweep who comes to sweep the chimneys or to seal up a sweep-hole. The householder can reasonably expect the sweep to take care of himself so far as any dangers from the flues are concerned. These chimney sweeps ought to have known that there might be dangerous fumes about and
ought to have taken steps to guard against them. They ought to have known that they should not attempt to seal up a sweep hole whilst the fire was still alight. They ought to have had the fire withdrawn before they attempted to seal it up or at any rate, they ought not to have stayed in the alcove too long when there might be dangerous fumes about. All this was known to these two sweeps; they were repeatedly warned about it, and it was for them to guard against the danger. It was not for the occupier to do it, even though he was present and heard the warnings. When a householder calls in a specialist to deal with a defective installation on his premises, he can reasonably expect the specialist to appreciate and guard against the dangers arising from the defect. The householder is not bound to watch over him to see that he comes to no harm. I would hold, therefore, that the occupier here was under no duty of care to these sweeps, at any rate in regard to the dangers which caused their deaths. If it had been a different danger, as for instance if the stairs leading to the cellar gave way, the occupier, might no doubt be responsible, but not for these dangers which were special risks ordinarily incidental to their calling.
OGWO V TAYLOR [1988] AC 431
FACTS
The defendant had negligently started a fire at his home by using a blow torch on the fascia boards whilst attempting DIY home improvements. The plaintiff, a fire fighter, entered the property wearing protective clothing in order to extinguish the blaze. The fire was successfully put out; however, the plaintiff suffered severe burn injuries from scalding steam which resulted from the fire.
ISSUE
Whether the defendant was liable?
HELD
There was no special principle which prevented firemen from claiming damages for injuries they had incurred while fighting a fire which had been negligent started. The mere fact that they did this in the course of their work and in the provision of a public service did not render the injuries outside the scope of the defendant?s duties. Moreover, the damage was foreseeable as the defendant should have known that where a fire was started negligently, the
inspect the machinery. Scott LJ held that an occupier is not liable for negligence of a contractor in maintaining a lift in a block of flats.
WOODWARD V MAYOR OF HASTINGS [1945] KB 174
FACTS
During the war, a grammar school had to be relocated. The children were accommodated in a church school, and began using the church school?s staff. Due to the negligence of a cleaner employed by the church, a student slipped on an icy step and sustained injuries. He sued the defendants, the grammar school?s board of governors, in negligence.
ISSUE
Whether the governors were vicariously liable for the cleaner?s negligence?
HELD
The governors had sufficient control over the cleaner that they were vicariously liable for their negligence. The defendants were responsible since there was no technical knowledge required for the cleaning of a step.
WARNINGS
An occupier may discharge his duty to a visitor by giving a warning of the danger. But the warning is not to be treated without more as absolving the occupier from liability unless in all the circumstances it was enough to enable the visitor to be reasonably safe. (Section 2(4)(a) of the OLA)
In order for this to suffice, the courts look at the circumstances of each case. If it is a written warning, it can?t apply to a blind visitor. If it is in English, it can?t apply to an illiterate person.
Sometimes the danger is so obvious that it is unnecessary to give a warning.
STAPLES V WEST DORSET DISTRICT COUNCIL (1995) 93 LGR 536
FACTS
The defendant occupied the Cobb at Lyme Regis which was a wall from which the public could gain access to the promenade. It sloped into the sea and at the time of the case, had
algae growing on it. The plaintiff slipped on the algae and fell and suffered serious injury. The plaintiff claimed to sue the defendant on the basis that there should have been an applicable signing, warning of the danger. There had been no accidents in its long history but the defendant presented a sign following the claimant?s fall. At the initial trial, the judge found in the claimant?s favour, hence the appeal.
ISSUE
Whether the defendant was liable despite the fact that the danger was obvious?
HELD
The court held that the defendant was not liable. This was on the basis that the sign wouldn?t have informed the claimant of new information. The duty was owed to the plaintiff by the defendant under the OLA 1957 was a duty to warn a visitor to the nature and extent of the risk if he was unaware. In this case, the claimant acknowledged that he was aware of the risk and stood on the algae nonetheless.
In cases where the visitor is deemed to have accepted the risk, there is no duty owed. See section 2(5) of the OLA. This is a specific application of the defence of volenti non fit injuria
CASE
SIMMS V LEIGH RUGBY FOOTBALL CLUB [1969] 2 ALL ER 923
FACTS
The defendant was a rugby football club occupying the football ground. The claimant was a member of the visiting team. He was tackled into a concrete wall alongside the touch line, and broke his leg. He sued the defendant.
ISSUE
Whether the defendant had breached his common duty of care towards the claimant for the presence of the wall?
HELD
Under section 2(5) of the OLA 1957, liability is absolved since the claimant must be taken to have willingly accepted the risk of playing on the field.
precautions. As per Buckley LJ; the doctrine of volenti non fit injuria affords a shield of defence to a party who could otherwise be liable in tort to an opponent who has by his conduct voluntarily encountered a risk which was fully known to him at the time. (Page; 668)
EXCLUSION OF LIABILITY
The OLA of 1957 provides that an occupier owes the common duty of care to his visitors >except in so far as he is free to and does extend, restrict, modify or exclude his duty to any visitor or visitors by agreement or otherwise. As per section 2(1). In the UK, the ability of business occupiers to exclude liability has been severely restricted by the Unfair Contract Terms Act 1977, but the private occupier still has some freedom to do so.
Liability can therefore be excluded by >agreement or otherwise.?
CASE
ASHDOWN V SAMUEL WILLIAMS& SONS LTD [1957] 1 QB 409
FACTS
The claimant was a licensee on land belonging to the defendants; when she was knocked down and injured by railway trucks which were being negligently shunted along a railway line. Notices had been posted that every person was there at his own risk and should have no claim for injury against the defendant. The claimant sued the defendant under Common Law as the case was before the OLA 1957. The defendant argued that his liability had been excluded by notices, but the claimant argued that she had not read them properly.
ISSUE
Whether the defendant was liable?
HELD
The claim failed because the defendant had taken reasonable steps to bring the conditions contained in the notices to the claimant?s attention. The Court of Appeal therefore sanctioned the use of notices. Since an occupier could exclude a licensee altogether by refusing permission to enter, there was nothing wrong with allowing entry subject to conditions stipulated by the occupier. If the entrant did not like the terms, he could choose either to stay out or enter as a trespasser.
See; White v Blackmore (supra). A notice at the entrance to the course and at other points about the field specified that the organisers were to be absolved from all liabilities arising out of accidents causing damage or personal injury howsoever caused. A majority of the Court of Appeal concluded that this was an effective defence. The deceased had entered the premises subject to the conditions of the notice.
The law therefore permits an occupier to exclude, modify their duty of care. We must see whether it applies to premises used for private purposes vis a vis those for public purposes.
With regard those for business purposes, an occupier is not able to exclude liability for death and personal injury. On the other hand, premises used for private purposes, liability can be excluded if the exclusion is reasonable. Reasonableness is a question of fact and the test is that of a reasonable man.
OCCUPIERS LIABILITY REGARDING TRESPASSERS
Prior to 1984, the law was that an occupier had a duty of care not to deliberately/recklessly injure a trespasser. With time, this duty was changed such that an occupier was under a duty to act humanely towards trespassers.
If such an occupier knew of the trespassers? presence on the premises, the occupier was expected to act humanely by giving notice.
In 1984, the UK enacted the OLA 1984 and this Act established parameters under which a duty of care was owed to trespassers. As such, an occupier had a duty of care if;
- He was aware of the danger or had reasonable ground to believe that it existed.
- If he knew that/ had reasonable ground to believe that he was in the vicinity of the danger concerned or that he could come into the vicinity of the danger. And this was irrespective of whether or not he had authority of being in the vicinity.
The occupier could reasonably be expected to offer the other protection
See: REVILL V NEWBERRY [1996] 1 ALL ER 291
FACTS
The claimant appealed against an award of damages in a personal injury action brought by the other party. The other party had been shot at close range by the claimant when trespassing
HELD
There was no obligation to warn of an obvious risk. The claimant would have been aware of the existence of the cliff so such warning would not have affected events.
The Act is silent on whether liability can be excluded. The question is about reasonableness.
Occupier'S Liability
Course: Bachelor of Laws (LLB)
University: Makerere University
- Discover more from:
